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Legal Regulations On Human Trafficking In India Major Issues And Future Prospects

What is human trafficking?

The United Nations defined human trafficking in 2000 through the United Nations Office on Drugs and Crime’s Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons as the acts which the traffickers must commit like to recruit ,transport, transfer ,harbour, receive benefit or to control by the means such as coercion, fraud, deception, violence for the purpose for sexual exploitation, forced labour, slavery and organ removal.

Why humans are trafficked?

People tend to become vulnerable due to social, economic and cultural factors which are generally specific to the region like poverty, war, civil unrest, militarism , political instability, natural disaster, oppression, lack of human rights, lack of social or economic opportunity, lack of adequate legislation, porous borders, corrupt government officers, devaluation of girls and women, desire of the victim to migrate generally lured over social media and internet and in the hope of better life.

Though these are the problematic conditions, above them it’s the traffickers who compel them to work or prostitute to make a profit.

Who are these traffickers?

Traffickers recruit, harbour, transport, and provide people for the purpose of compelling labours or commercial sexual exploitation. The obvious curiosity that arises here is that how can someone be so inhumane?

Justifying human trafficking

They distort the situation into by framing the situation into more acceptable terms like using internships to mask the indentured servitude .They use false reasoning to convince themselves that they have done no wrong- everybody does it or if I don’t do it, somebody else will. They compare themselves to other brutal traffickers to separate themselves as better. They accuse people outside of their control. Also, they identify the victims as inferiors and worthy of exploitation.

They generally grow up around the environment of exploitation which makes them insensitive and normalizes the abuse. For them, it's simply about joining the family business. seeing other traffickers living a luxurious life as the trafficking business includes (low start-up costs, low risks, very high profits, and large demands ).Human trafficking business has an added advantage over drug trafficking is that humans can be sold repeatedly.

How it all started? (a historical approach)

Slavery has been in existence from the earliest records of humanity:

  • 1720 BC, ‘The code of Hammurabi’ was the first to document the law as it pertains to slavery during that time there are some biblical accounts too.
  • 700 BC, there is evidence of the African slave trade which was operated internally within the Sahara desert.
  • 416 BC, slavery was prominent in the wars between the Greeks and the Turks.
  • In 1446, the new world chattel slavery begins with the Portugal claiming ownership of the guinea.
  • In 1793, the U.S. passed the fugitive slave laws which gave permission to slave owners to go after slaves who had escaped to the north.
  • In 1850, Brazil, the second-largest importer of African slaves, banned the slave trade.
  • In 1865- the U.S. constitution outlawed involuntary servitude.
  • In 1875- Portugal made slavery illegal
  • In 1981, chattel slavery was wiped out.
According to Bales (2007), there was a resurgence of slavery from 1945 onwards because of an increase in the world’s population, there were massive economic changes that broadened the gap between the rich and the poor, and this was accompanied by police and military corruption as well.

Global Position

Conventions And Treaties Which Have A Direct Relevance On Human Trafficking

  • Universal Declaration of Human Rights.
  • Suppression of Traffic Convention.
  • International Covenant for Civil and Political Rights.
  • International Covenant for Economic, Social, and Cultural Rights.
  • Convention on Elimination of all Forms of Discrimination Against Women.
  • Convention on the Rights of the Child.
  • SAARC Conventions that have been ratified by India.
  • Forced Labour Convention of the International Labour Organisation.
  • UN Convention on Transnational Organised Crime.

Extradition

Extradition is briefly described as the surrender of an alleged / convicted criminal by one state to another. It has an important role to play in the battle against international crime.
The extradition of a fugitive from India to a foreign country or vice versa is governed by the provisions in the Extradition Act, 1962.

Status Of International Instruments Signed And Ratified By India.

There are various international instruments signed and ratified by India which are related to human trafficking directly or indirectly like Convention on Elimination of Racial Discrimination- 4 January 1969, SAARC convention of preventing and combating trafficking in women and children for prostitution 2002 and SAARC convention on the regional arrangement for the promotion of children welfare in South Asia signed on the 5th January 2002 , Optional Protocol to CRC on Sale of Children, Child Prostitution and Child Pornography Signed on 15 November 2004 and various other ILO Conventions.

Indian Position

  • General Provisions In Criminal Law With Respect Human Trafficking
  • Indian Penal Code, 1860 include various sections like Kidnapping/Abduction 359-368, Criminal Conspiracy 120A- 120 B, Slavery 370-371 etc.
  • Prevention of corruption Act, 1988.
  • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
  • The Juvenile Justice (Care & Protection of Children) Act, 2015
  • Commercial Sexual Exploitation And Human Trafficking
  • Indian Penal Code,1860 include various sections like Rape 375, 376, Assault/ Criminal force/ act to dishonour/ outrage modesty, defamation 354, 355, 509, 500;Procuration of Minor girl 366A; Selling Minor for prostitution 372; Buying Minor for prostitution 373.
  • Immoral Traffic Prevention Act, 1956.
  • Religious Institution (Prevention Of Misuse) Act, 1988
  • Juvenile Justice (Care And Protection Of Children) Act, 2015.
  • Human Trafficking And Labour Law
  • The Children (Pledging Of Labour) Act, 1933.
  • Bonded Labour System (Abolition) Act, 1976.
  • Child Labour (Prohibition And Regulation) Act, 1986.
  • The Juvenile Justice (Care And Protection) Act, 2015.

There are other safety and welfare provisions like The Employees' State Insurance Act, 1948; The Factories Act, 1948; The Mines Act, 1952; etc. These provisions have an indirect role in protection of the trafficking victims.

Miscellaneous Offences Associated With Trafficking.

Adoption And Trafficking

  • The Guardians and Wards Act, 1890.
  • The Hindu Adoptions and Maintenance Act, 1956.
  • CARA Guidelines
  • Juvenile Justice Act, 2015.

Transplantation Of Human Organs And Trafficking

  • Transplantation Of Human Organs Act, 1994
  • Trafficking for marriage, pornography, camel jockeying, domestic work, circus.

Major Issues:

With such strong legal regulations nationally and internationally why is human trafficking still prevalent?

Corruption infringes rights like Right to life, Liberty, freedom and equality. It additionally violates non discrimination rights, Right to participate in politics, access to justice and fair trial, right to information, right to education, water, housing, environment, food, various more economical, social or cultural rights which also may gets violated directly or indirectly. The trafficking of persons (prevention, protection and rehabilitation bill, 2018) is the present bill pending in India related to human trafficking.

Highlights of the bill:
  • This Bill creates a law that is for investigation of all the types of trafficking, and the protection, rescue, and rehabilitation of trafficked victims.
  • The Bill is for the establishment of investigation and rehabilitation authorities at the district, state and national levels. Anti-Trafficking Units should be established to rescue victims and investigate cases.
  • The Bill classifies certain purposes of trafficking as the ‘aggravated’ forms of trafficking. Aggravated trafficking has a higher punishment.
  • The Bill sets out penalties for several offenses connected with trafficking. Mostly, the penalties marked out are higher than the punishment provided under the prevailing laws.

Critical analysis
It uses vague language, creating space for misuse and abuse.

The U.N. has shown concerns over the broad and ambiguous provisions which could penalize activities that are not necessarily related to human trafficking.

The Bill criminalizes encouraging or abetting any person to migrate illegally into India, or Indians to some other country. This provision misleads the relationship between a smuggler and a migrant by combining trafficking with smuggling.

It also criminalizes persons providing help to migrants and ignores the reality that migrants often have to turn to irregular means of migration.

The circulation or publication or promotion of material which may lead to trafficking is criminalized without providing guidelines for the kind of material that could lead to trafficking.

The Bill poses harm to consenting sex workers as it depends on the definition which is the definition of ‘Trafficking of Persons’ in Section 370 of the Indian penal code wherein consent is irrelevant for the offense of trafficking, thus, police officers could use it against sex workers.

The Bill provides safeguard to the victims for offences committed by the trafficker, the safeguard extends to only those crimes that are punishable with imprisonment of 10 years or more, or death.

Thus, immunity cannot be claimed for petty offenses even though committed under coercion by the trafficker. Further, the burden of proof that the offense was committed under coercion or any kind of threat is on the victim of trafficking.

Also, while the Bill provides strong punishments and penalties for various offenses related to trafficking, it classifies certain forms of trafficking as ‘aggravated’, which could trivialize the forms of trafficking not considered aggravated.

The Bill provides that knowingly allowing premises for the purpose of trafficking activities is punishable, on its own, is an important immunity for trafficking victims. Unfortunately, the Bill then creates a presumption of guilt against the owner of such premises without providing the safeguards which exist in other criminal legislation with similar presumptions.

The Bill could also cause confusion as there is other legislation that deals with specific forms of trafficking and provide their own enforcement mechanisms.

Under India’s Bonded Labour System (Abolition) Act of 1976 forced labour is prohibited. Since, May 2016 freed bonded labourers had right to assistance like government rehabilitation in the form of Rs 1 lakh , agricultural land, low-cost housing, employment, free rations for all and free education for children.

The reason why the benefit of any new scheme cannot be utilized for the labourers is that there is a clause according to which consolidated assistance is payable only upon conviction of the employer. Getting punishment in all these conditions is rare also, generally, they have to give a few hundred rupees as a fine that too after a long time has passed. There is also some sort of conspiracy between the state machinery, local politicians and the keepers of bonded labours.

The latest report from International Labour Organization shows that there are 18.3 million bonded labourers in India today, working in stone quarries, mines, cottage industries , mines, textiles and agriculture.

The national crime record bureau in India had information which reflected a moderately low number of law enforcement activity for the size of trafficking in India and a very low conviction rate. Also, the data is not comprehensive related to the range of sentences applied to convicted traffickers. There is no comprehensive data regarding the range of sentences which are applied to the convicted traffickers.

Loopholes at the global level:
LGBTQ
There are not many organizations targeting human trafficking as LGBTQ rights issues or providing assistance specifically for LGBTQ victims.

Homeless Youth And Children:

They require special attention in the criminal justice system because they are the major targets of human trafficking .

Health Law:

There is major need for integration of law and health care providers to assist in the identification and treatment of victims and for the prosecution of traffickers.

Cyberlaw And Technology:

Traffickers can conduct almost all the business online, cyberlaw needs to become strongly intertwined with the issue of human trafficking.

Immigration Law:

Immigrants make up a high proportion of human trafficking victims and there is major issue related to the individual’s legal status before they can address other aspects of a case. The laws related to human trafficking are cumbersome to enforce because the victims are hesitant to identify traffickers for fear of consequences. So, this crime goes beyond the borders, and therefore jurisdictions.

Since, several laws are broken together and its not a one time event but a process, building a case against them can be time, resource and energy-consuming to a great extent. So, In countries with fewer resources, law enforcement is hindered.

One of the issues in enforcing anti-trafficking laws is that there is major lack in the training of the local officers. Even if the anti trafficking laws are implemented by the state, it is most likely that the border patrol officers, federal agents, and local police officers are not well-versed in anti trafficking laws.

Victims of trafficking are often treated as criminals or illegal immigrants, there is often a language barrier between enforcement officers and the victims, making information-gathering problematic.

The vast resources which is needed to ensure that the officers are able to properly enforce anti-trafficking laws are limited or unavailable in most of the states.

Life After Slavery:

Trafficking victims are abused and exploited in the process of trafficking which generally result in the short and long-term minor and major psychological and physical attacks and diseases especially STDs ( sexually transmitted diseases or HIV viruses). This condition can even lead to permanent disability or death.

The direct consequences of human trafficking are disorientation, depression, aggression alienation and difficulties in concentration.

Even the process of rehabilitation for the victims is not guaranteed for a certain result. Although the victims can come out from the physical problems, the trauma and the psychological problems does not let them totally recover from what they have been through.

The sad part is that there is violation of rights of the victims even after they come out from the status of exploitation. In many cases they face re-victimization.

In many of the countries, the protection provided to the trafficked persons is directly conditioned by their willingness to cooperate with the responsible authorities.

But this conditional protection is contradictory to the full access and protection of human rights and the use of trafficked persons as an instrument in the criminal proceedings is not allowed.

The Road Ahead

First of all, how to recognize a victim?

  • They show signs that their movement is controlled.
  • They have false identity or travel documents.
  • They do not know their home or work address.
  • They have no access to their earnings.
  • They are unable to negotiate working conditions.
  • They work excessively long hours over long periods.
  • They have limited or no social interaction.
  • They have limited contact with their families or with people outside of their immediate environment.
  • They think that they are bonded by debt.

3PS
The 3Ps paradigm- prosecution, protection, and prevention are the fundamental framework used around the world to combat human trafficking. In addition, a fourth P for partnership acts as a complementary means to achieve progress across the 3Ps and to include all segments of society in the fight against modern slavery.

Prosecution:

Palermo Protocol and the TVPA has framework under which effective law enforcement action is an important element of government efforts to fight trafficking of human.

Guidance For Solicitors:

  • Maintaining the rule of law and proper justice administration.
  • If the client is the victim, acting in the best interests of each client.
  • Child cases must be dealt with priority because of added vulnerability. also, no child case should be considered without contacting individuals from local authorities specializing in children.
  • Victims may not be able to recognize themselves as victims, but the information should be passed to the police, and should be notified to a relevant organization which could help police to identify a crime following client confidentiality.

Guidance For Police:

There is a need to ensure police are trained and equipped to identify and investigate cases of human trafficking in all its forms, including:

  • Training by sharing the latest investigation and victim interview techniques with officers.
  • Policing capabilities and expertise should include tools and systems for sharing intelligence globally.
  • Concrete action in the field to disrupt and dismantle human trafficking networks.
  • Partnerships: working across sectors to improve the ways in which trafficking can be identified, reported and investigated.
  • Gathering experts from across the world through events and conferences.
  • Resources should include general information related to international legislation, and law enforcement guides and manuals.

Protection:

Protection is key to the victim centered approach that the international community should take in its efforts to combat modern slavery.

The rehabilitation and reintegration scheme should include victim services which should consist of emergency and long-term services; intensive case management, housing, food, medical, dental care, and legal assistance; also access to educational, vocational, and economic opportunities. There should be efforts to support the victims of trafficking from other countries so that they can rebuild their lives including voluntary returning back and assistance in their home communities.

Prevention:

  • Prevention efforts are an indispensible component around the world to combat human trafficking. Effective prevention endeavours can acknowledge the tactics and strategies of human traffickers head-on.
  • There should be endeavours, such as amending labour laws so they do not exclude certain classes of workers from consideration; robustly enforcing labour laws, particularly in sectors where trafficking is most typically found.
  • Taking and implementing measures such as birth registration, that reduce vulnerabilities to trafficking.
  • Development and monitoring of labour recruitment programs to protect workers from exploitation.
  • Effective policy implementation along with stronger enforcement, better reporting, and government-endorsed business standards.
  • Monitoring supply chains to address forced labour, including through government policies.

Partnership:

Partnerships between public, private sectors and civil society, NGOs and the use of media can expand awareness, leverage expertise, and facilitate creative solutions.

Bibliography:
  1. Ghosh, Biswajit. (2009). Trafficking in women and children in India: nature, dimensions and strategies for prevention. The International Journal of Human Rights. 13. 716-738. 10.1080/13642980802533109.
  2. https://www.researchgate.net/publication/304741130_The_Convention_on_Elimination_of_All_Forms_of_Discrimination_against_Women
  3. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018
  4. Ministry: women and child development.
  5. https://www.prsindia.org/billtrack/trafficking-persons-prevention-protection-and-rehabilitation-bill-2018
  6. Combatting human trafficking-Harvard law school
  7. https://hls.harvard.edu/content/uploads/2008/06/Human-Trafficking-Guide-OPIA-2017.pdf

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